Should Polish legislator take inspiration from Italian service contracts regulation?

In 2011 the Civil Law Codification Committee in Poland established a task group to draft prospective new Civil Code provisions on service contracts. The blueprint for the new service contracts regulation has been based on the assumption that a relatively small body of general provisions rather than detached provisions on numerous contractual types may be a transparent and flexible instrument of regulating the rapidly developing and innovative services sector. Comparative research has been an important part of the Group's agenda. The choice of Italian law as one of the jurisdictions analysed by the Group has been obvious. Italy may not only boast of venerable legal tradition. The contemporary Italian case law and academic legal research offer an important contribution to the development of European private law. This article summarises results of the Group's analysis of Italian service contracts regulation in order to consider it as a prospective source of inspiration for Polish legislator. The basic assumption of the Task Group has determined the scope of the analysis. The article has been focused on the most general types of service contracts in Italian law, namely appalto and contratto d'opera. The first part of the article is a brief description of relevant provisions of codice civile. The possible transposition of Italian legislative concepts into Polish legal system is the subject of the second part of the article. The distinction between regulation of services provided by organised business entities (appalto) and those rendered by natural persons acting as entrepreneurs (contratto d'opera) is an interesting feature of Italian contract law. The rapid growth in the number of b2B relations in Poland makes it even more interesting as a possible model for Polish service contracts regulation. On one hand not all contracts between entrepreneurs and larger business entities (b2B relations) may be re-characterised as labour relations. On the other hand it reasonable to treat an entrepreneur in b2B relations as a typically weaker party which needs protection that would overcome the assumption of parties' even chances. Nevertheless it has been argued that the weakness of the entrepreneur's bargaining power does not stem from small scale of business activity and personal involvement in the performance as it has been assumed by the authors of the Italian civil code. The crucial factors are the lack of capacity to diversify the business and ensuing economic dependency on a single contractor. It has been demonstrated that Italian provisions on the subcontractors' direct claims against clients of service providers offer an interesting counterpoint to the analogous Polish Civil Code provisions. Contrary to Polish law, Italian codice civile does not limit the scope of application of a direct claim to construction contracts. Protection of subcontractors is a general characteristic of appalto. If direct claims of subcontractors should be admitted at all into Polish private law system, they should be available not only in the field of construction industry. The narrow availability of these claims raises serous doubts about the constitutionality of such legislative solution. The Italian model of a subcontractor's direct claim appears to be preferable in this aspect. In comparison to the Polish law it reduces also significantly the risk of double payment by the client, which seems to be a reasonable solution. It is to be stressed that Italian concept of direct claims has a disappointingly narrow personal scope of application. It covers only labour relations. Taking into consideration other, more efficient instruments of labour protection the direct claim mechanism limited to the labour contract claims appears to be redundant. An important part of appalto regulation has been devoted to the problem of contract adjustment to contingencies. It is an elaborate legislative structure which reflects the economic concepts regarding open contracts. It has been argued that client's right to adapt the contract unilaterally, as provided for in Italian law, is more likely to provide swiftly an efficient solution than judicial adaptation of the contract, which is the main instrument of contract adaptation in Polish law. Italian law balances parties' rights in a rather arbitrary but transparent way granting a service provider right to withdraw from the contract if the value of the imposed changes exceeds 1/6 of provider's compensation